Roe v. Federal Ins. Co.

• Citation: 587 N.E.2d 214,412 Mass. 43
• Parties: Mary ROE et al. 1 v. FEDERAL INSURANCE COMPANY et al. 2
• Decision Date: 26 February 1992
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 214

587 N.E.2d 214

412 Mass. 43

Mary ROE et al. ¹ v. FEDERAL INSURANCE COMPANY et al. ²

Supreme Judicial Court of Massachusetts,

Hampshire.

Argued Jan. 7, 1992.

Decided Feb. 26, 1992.

Richard M. Howland, Amherst, for plaintiffs.

Maria E. DeLuzio, Boston, for defendants.

Before LIACOS, C.J., and ABRAMS, LYNCH, O'CONNOR and GREANEY, JJ.

GREANEY, Justice.

This case raises the question whether a dentist's professional liability insurance covers claims by a patient and her spouse based on the dentist's improper sexual relationship with his patient. We conclude that it does not.

The patient, Mary Roe, and her husband (plaintiffs), brought an action in the Superior Court against the dentist, asserting claims of malpractice, breach of contract, sexual assault, assault and battery, violation of G.L. c. 93A, intentional infliction of emotional distress, and loss of consortium. The gravamen of the plaintiffs' complaint was that the dentist had sexually assaulted and molested the patient during office visits, in the course of her treatment, at least once after the patient had received novocaine. The plaintiffs settled the action against the dentist for $100,000, ³ and took an assignment from him of his rights under his professional liability policy (his insurers had refused either to defend or to indemnify). The plaintiffs then brought this action against Federal Insurance Company, the company that had issued the dentist's malpractice policy, and Chubb Group of Insurance Companies, of which Federal is a member (insurers), seeking to reach and apply the proceeds of the malpractice policy, see G.L. c. 175, §§ 112-113 (1990 ed.), and G.L. c. 214, § 3(10) (1990 ed.), and to recover under the assignment of rights given by the dentist for the insurers' alleged breach of contract, negligence, and violation of G.L. c. 93A.

The plaintiffs moved for summary judgment under Mass.R.Civ.P. 56(a), 365 Mass. 824 (1974). A judge of the Superior Court granted summary judgment for the insurers on all claims, see Mass.R.Civ.P. 56(c), 365 Mass. 824 (1974), concluding that the dentist's professional liability policy did not afford coverage for the intentional acts of sexual misbehavior that had occurred. The plaintiffs appealed, and we transferred the case to this court on our own motion.

The summary judgment record discloses the following facts. ⁴ The patient, who was referred to the dentist by her husband, received treatment from July, 1980, to May, 1983. During numerous office visits, the dentist kissed the patient; touched her breasts and genitalia under her clothing; undressed her from the waist down; undressed himself; inserted his fingers into her vagina; placed her hands on his genitalia and, during the last visit, pulled her out of the dental chair and attempted unsuccessfully to have intercourse with her. There were approximately twenty office visits, and the sexual incidents occurred at "many" of these visits. On at least one occasion, the dentist gave the patient novocaine before making his advances. The treatment furnished by the dentist to the patient involved the cleaning of her teeth, examination of her teeth, recommendations for dental work, replacement of fillings, the extraction of a wisdom tooth and follow-up care (cleaning area of extraction and prescribing appropriate medications).

After the first incident (kissing only), the patient questioned the dentist about his actions. He said that he had done nothing wrong. He told the patient to trust him, and that she and another patient were "special" to him. The patient said that she "felt better" knowing this, but that she had been "going through a depression" and "did not need this." ⁵

In December, 1984, the patient filed a complaint against the dentist with the Board of Registration in Dentistry (board). The dentist admitted the acts alleged, but claimed that the patient had consented to them. A hearing was held before the Division of Administrative Law Appeals. See G.L. c. 7, § 4H (1990 ed.); G.L. c. 30A, §§ 10-11 (1990 ed.); 801 Code Mass.Regs. §§ 1.00 et seq. (1986). An administrative magistrate concluded that the dentist had sexually assaulted the patient, that she was a "troubled" woman who lacked the ability to fend off the dentist's advances, and that the dentist continually ignored her pleas to stop. The magistrate also concluded that, even if the dentist's conduct had been part of a "mutually enjoyable relationship," he still would not be excused from professional discipline because "[a] dentist who engages in sexual activity with a patient who has come for dental treatment is guilty of gross misconduct in the practice of his profession." The magistrate recommended that the dentist's license to practice be revoked.

Thereafter, the board reviewed the hearing transcript and the magistrate's recommended decision, and found that, because the patient had consented to the dentist's sexual advances, the parties had been engaged in a mutually enjoyable sexual relationship. The board also rejected the magistrate's finding that the dentist had exerted psychological pressure on the patient. Nonetheless, the board concluded that the patient's consent would not exonerate the dentist because "[a] dentist who engages in sexual activity with a patient who has come for dental treatment is guilty of gross misconduct in the practice of his profession." The board suspended the dentist's license. See G.L. c. 112, § 61 (1990 ed.).

During the relevant period, the dentist was insured under a professional liability policy issued by the defendant, Federal Insurance Company. The insuring provision of that policy provided, in pertinent part, as follows:

"The company will pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of:

"1. Injury arising out of the rendering of or failure to render during the policy period, professional services by the individual insured ... performed in the practice of the insured's profession as a dentist. 'As a dentist' shall mean the practice of dentistry as defined by the applicable statutes and licensing laws of the jurisdiction in which the insured practices."

The policy did not define the term "professional services" as used in this provision.

1. The dispositive question is whether the plaintiffs' damages were caused by an "[i]njury arising out of the rendering of or failure to render ... professional services by [the dentist] ... performed in the practice of [his] profession as a dentist." The plaintiffs argue that this language should be construed broadly to their benefit and, when it is so considered, the policy covers the dentist's conduct because the conduct was intrinsic to, and inseparable from, the dental services sought by and performed on the patient.

We have not had occasion to consider the meaning of the term "professional services," when used in the insuring provision of a medical malpractice policy. In Marx v. Hartford Accident & Indem. Co., 183 Neb. 12, 13, 157 N.W.2d 870 (1968), the Supreme Court of Nebraska considered the term and stated the following:

"[A medical malpractice] insurer's liability is ... limited to the performing or rendering of 'professional' acts or services. Something more than an act flowing from mere employment or vocation is essential. The act or service must be such as exacts the use or application of special learning or attainments of some kind. The term 'professional' in the context used in the policy provision means something more than mere proficiency in the performance of a task and implies intellectual skill as contrasted with that used in an occupation for production or sale of commodities. A 'professional' act or service is one arising out of a vocation, calling, occupation, or employment involving specialized knowledge, labor, or skill, and the labor or skill involved is predominantly mental or intellectual, rather than physical or manual.... In determining whether a particular act is of a professional nature or a 'professional service' we must look not to the title or character of the party performing the act, but to the act itself." (Citations omitted.)

This statement of a standard, or something close to it, has been widely accepted. See Harad v. Aetna Casualty & Sur. Co., 839 F.2d 979, 984 (3d Cir.1988); Curtis Ambulance of Fla., Inc. v. Shawnee County Comm'rs, 811 F.2d 1371, 1379-1380 (10th Cir.1987); Bank of Cal., N.A. v. Opie, 663 F.2d 977, 981 (9th Cir.1981); Horn v. Burns & Roe, 536 F.2d 251, 255 (8th Cir.1976); St. Paul Fire & Marine Ins. Co. v. Asbury, 149 Ariz. 565, 566, 720 P.2d 540 (Ct.App.1986); Hirst v. St. Paul Fire & Marine Ins. Co., 106 Idaho 792, 683 P.2d 440 (Ct.App. 1984); Niedzielski v. St. Paul Fire & Marine Ins. Co., 134 N.H. 141, 589 A.2d 130 (1991); Vigue v. John E. Fogarty Memorial Hosp., 481 A.2d 1, 3 (R.I.1984); Standard Fire Ins. Co. v. Blakeslee, 54 Wash.App. 1, 9, 771 P.2d 1172 (1989).

The standard recognizes several relevant considerations: (1) that membership in a profession has traditionally been recognized as requiring the possession of special learning acquired through considerable rigorous intellectual training; (2) that physicians and dentists, when rendering patient care, are called upon to use or apply special learning or attainments; (3) that, when there is a complaint of malpractice, attention should focus on the act or service performed rather than the fact that the alleged wrongdoer was a physician or dentist because "the scope of professional services does not include all forms of a medical professional's conduct simply because he or she is a doctor or dentist," Niedzielski v. St. Paul Fire & Marine Ins. Co., supra 134 N.H. at 144, 589 A.2d 130; and (4) that, to fall within the insuring language like that used here, there must be a causal relationship between the alleged harm and the complained-of professional act or service, that is, it must be a medical or dental act...